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Editor’s Note: The following <a href="http://www.bakerlaw.com/alerts/regional-director-to-northwestern-football-players-go-forth-and-vote">Executive Alert</a> was published by members of BakerHostetler’s <a href="http://www.bakerlaw.com/LaborRelations">Labor Relations</a> team.

In a move that has surprised many, but not all, National Labor Relations Board (NLRB)-watchers and collegiate football fans, Chicago-area NLRB regional director Peter Sung Ohr has determined that Northwestern University (Northwestern) football players who receive grant-in-aid are employees of Northwestern and an appropriate bargaining unit.  Based upon those findings, he has directed an election at some time and place to be determined.  (The regional director excluded from the bargaining unit walk-on football players who do not receive grant-in-aid.)

In reaching his decision, the regional director relied, in part, upon the NLRB’s decision in Boston Medical Center, 330 NLRB 152 (1999), in which the NLRB determined that house staff were employees who could be represented by unions.  The high profile of this case, and the regional director’s reliance on a case involving residents and interns, surely will provide a boost to union organizing at academic medical centers.

The regional director’s written decision addressed three separate arguments raised by Northwestern in opposition to the petition filed by the College Athletes Players Association (CAPA), which is seeking to represent the players.  Each argument is discussed below.

Football Players Are Employees Too

Northwestern argued that under the NLRB’s decision in Brown University, 342 NLRB 483 (2004), which addressed the employment status of graduate student assistants, the football players are not employees.  In perhaps the most interesting aspect of the regional director’s decision, he first applied a common law test to reach the conclusion that the football players are, in fact, employees.  He concluded that the amount of control exercised by the nonacademic employees of Northwestern, specifically the football coach who is not a member of the faculty, was similar to the control exercised by common law employers.  Evidence of this control included:
<ul>
	<li>the fact that football players are not considered for admission unless and until they are recruited by the head coach and his team;</li>
	<li>the “tenders,” or contracts that set forth a host of rules by which players must abide to maintain their scholarships, their “compensation” for the services they provide to Northwestern, and the control exercised by coaches “over nearly every aspect of the players’ private lives” under threat of sanction (i.e., loss of scholarships) if they violate rules or lose their eligibility;</li>
	<li>the large number of hours devoted to football-related activities (40-50 hours per week, during the season, 50-60 hours per week during training camp); and</li>
	<li>the fact that players under scholarship may not miss practice or games to attend class—a fact that in one instance led a player to alter his educational plans because he was discouraged from pursuing a pre-med curriculum.</li>
</ul>
Having addressed the common law employee status of the football players, the regional director also determined that the football players were employees after considering the four factors upon which the NLRB relied in Brown University: (1) the status of graduate assistants as students; (2) the role of the graduate student assistantships in graduate education; (3) the graduate student assistants’ relationship with the faculty; and (4) the financial support the graduate student assistants receive to attend Brown University.

The regional director distinguished the Northwestern University football players from the Brown University graduate student assistants on all four counts.
<ul>
	<li>The regional director determined that, although the football players are students and must be students to be eligible to play football, they are not “primarily students,” largely because of the significant number of hours they devote to football-related activities.  The regional director concluded that “it cannot be said that they are ‘primarily students’ who ‘spend only a limited number of hours performing their athletic duties.’”</li>
	<li>Next, the regional director concluded that Northwestern’s football program does not constitute a “core element” of their education.  The football players do not receive any academic credit for playing football, nor are they required to play football in order to obtain their undergraduate degrees.  This distinguishes the football players from graduate student assistants who are required to teach to complete their program requirements.</li>
	<li>Turning to the football players’ relationships with Northwestern faculty, the regional director also distinguished the circumstances of the football players, on the one hand, and the graduate students in Brown University, on the other hand, because the football program is not directed by faculty members.  Thus, the regional director determined that allowing the football players to organize would not “have a deleterious impact on overall educational decisions.”</li>
	<li>Finally, the regional director distinguished the financial aid received by Brown University’s graduate students from the grant-in-aid provided to Northwestern’s football players.  He found a compelling distinction in the fact that the football players are not offered scholarships unless they plan to play football, and they may lose their scholarships if they voluntarily withdraw from the team.  In contrast, the graduate students in Brown University received the same compensation as graduate fellows who were not required to teach.</li>
</ul>
Northwestern argued that if the football players are employees, they are temporary employees due to their limited tenure.  Relying on established precedent, including Boston Medical Center, 330 NLRB 152 (1999), the regional director fairly readily dispatched that argument.

The Appropriateness of the Bargaining Unit:  Who Knew Specialty Healthcare Had Such a Good Arm?

CAPA filed its petition on behalf of football players receiving grant-in-aid only, and Northwestern challenged the appropriateness of the proposed bargaining unit.  Relying on the NLRB’s decision in Specialty Healthcare and Rehabilitation Center of Mobile, 357 NLRB No. 83, slip op. at 1 (2011), enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013), the regional director found that Northwestern did not meet its burden of showing that the petitioned-for unit is not appropriate.  Specifically, he determined that the walk-on players who are not subject to all of the rigorous requirements to which players receiving scholarships must adhere, do not share an “overwhelming community of interest” with players who do receive grant-in-aid.  In particular, they do not face the threat of losing “up to the equivalent of a quarter million dollars in scholarship” if they do not play football.

CAPA Is a Labor Organization Within the Meaning of the NLRA

The final argument raised by Northwestern was that CAPA is not a labor organization.  Northwestern argued that CAPA was not a labor organization within the meaning of the NLRA, unless (1) the football players were employees and (2) the petitioned for unit was an appropriate unit.  Having decided these issues against Northwestern, it was a foregone conclusion that the regional director also would conclude that CAPA is a labor organization within the meaning of the NLRA.

Conclusion:  Wherefore Academic Medical Centers?

Unions around the country have been actively seeking to organize house staff.  This decision will provide free publicity to unions and moral support to house staff who want to unionize.  Their task will be easier because the NLRB already has determined that they may be employees under appropriate circumstances.  Academic medical centers would be well advised to prepare and to implement a plan to address organizing efforts.

Northwestern Football Players and Academic Medical Centers: The Other Shoe Has Dropped